Court To Rule on States' Immunity From Special-Education Lawsuits

Washington--The U.S. Supreme Court agreed last week to decide
whether states can use the 11th Amendment as a shield against federal
lawsuits charging them with discrimination against the handicapped in
education.

The case, which stemmed from a proposed change in placement for a
learning-disabled Pennsylvania boy, also questions whether the federal
special-education law bars state school chiefs from ruling on hearing
officers' decisions in such disputes.

On the first day of its 1988-89 term, the Court also agreed to
consider whether a Texas teachers' union is entitled to attorney's fees
after it was only partially successful in overturning a school
district's policy restricting teacher speech.

The Justices also added a third employee drug-testing case to its
docket and accepted a pair of cases involving the role of government in
observing religious holidays and accommodating citizens' religious
beliefs.

In addition, the Court declined to review lower-court rulings that
required two states to share in the cost of desegregating schools. It
also rejected an appeal in an asbestos manufacturer's bankruptcy
lawsuit, a move that could speed up property-damage payments to
districts.

Sovereign Immunity

The main question raised by the special-education case, Gilhool v.
Muth (Case No. 87-1855), is whether the Congress intended to abrogate
states' sovereign immunity from4federal lawsuits when it passed the
Education for All Handicapped Children Act, pl 94-142.

The 11th Amendment says only that states cannot be sued in federal
courts by citizens of other states or foreign countries. But in a
string of cases dating back almost 100 years, the Court has carved out
a number of exceptions to that rule that, as the Justices acknowledged
in a 1986 case, have left "the line between permitted and prohibited
suits ... indistinct."

In 1890, the Court extended states' immunity under the amendment to
suits brought by their own citizens. But in subsequent cases, it has
held that the Congress can unilaterally eliminate such protection in
adopting legislation to enforce the equal-protection and due-process
clauses of the 14th Amendment. However, the Court has said, the
Congress must make its intention to do so "unmistakably clear in the
language of the statute."

In the Gilhool case, Pennsylvania's secretary of education argues
that "Congress did not expressly and unmistakably express that intent"
when it passed pl 94-142.

The secretary, Thomas K. Gilhool, was named as a co-defendant in the
suit along with the Central Bucks School District and its
superintendent. Federal district and appeals courts have ordered Mr.
Gilhool and the district to split the cost of attorney's fees and one
year's private-school tuition for the handicapped student.

Formidable Obstacle

A victory for Mr. Gilhool could create a formidable legal obstacle
for disabled students who believe that state policies and decisions
violate their right to "a free appropriate education" under pl 94-142.
Under one of the many exceptions to the 11th Amendment, however, they
could continue to sue local school officials for such violations.

A decision in the state's favor also could give rise to a drawn-out
battle in the Congress over legislation to nullify the Court's
ruling.

For example, four years passed between the time the Court handed
down its ruling in Grove City College v. Bell, which narrowed the scope
of pl 94-142 and other civil-rights laws, and the enactment last spring
of the Civil Rights Restoration Act.

A second question raised by the Gilhool case is whether chief state
school officers can participate in administrative due-process
proceedings required under the special-education law. The lower courts
in the case ruled that they could not.

Mr. Gilhool argues that the law requires only that "the hearing not
be conducted by someone closely associated with the very school
officials whose educational plan a parent has rejected." A state
superintendent, he says, "lacks that close association ... and is,
therefore, a permissible reviewer."

The Court is expected to hear arguments in the case early next
year.

Other Action

The Justices last week also took action on the following issues:

Asbestos. The Court declined to review Macarthur Company
v.ns-Manville Corporation (No. 87-2082), a legal challenge to the
asbestos manufacturer's bankruptcy proposal. The move helps clear the
way for the resolution of millions of dollars of claims against the
corporation by school districts.

Manville filed for protection under Chapter 11 of the federal
bankruptcy code in 1982. Under its reorganization plan, it will
establish two trust funds--one to handle personal-injury claims and the
other to handle property-damage claims filed by districts and other
purchasers of its asbestos-containing products.

The suit was filed by a Minnesota company that distributed Manville
products. It objected to an agreement that Manville reached with its
insurers, saying the settlement had left it exposed to lawsuits by
victims of Manville products.

Attorney's fees. The Court agreed to hear Texas State Teachers
Association v. Garland Independent School District (No. 87-1759), a
case that questions whether a Texas school district must pay attorney's
fees to a teachers' union in a dispute over teachers' free-speech
rights.

The suit involves a district policy that barred union officials from
speaking to teachers during school hours and denied them access to
school mailboxes and bulletin boards. The district also prohibited
school employees from discussing union matters while on the job.

A federal di

Johns-Manville Corporation (No. 87-2082), a legal challenge to the
asbestos manufacturer's bankruptcy proposal. The move helps clear the
way for the resolution of millions of dollars of claims against the
corporation by school districts.

Manville filed for protection under Chapter 11 of the federal
bankruptcy code in 1982. Under its reorganization plan, it will
establish two trust funds--one to handle personal-injury claims and the
other to handle property-damage claims filed by districts and other
purchasers of its asbestos-containing products.

The suit was filed by a Minnesota company that distributed Manville
products. It objected to an agreement that Manville reached with its
insurers, saying the settlement had left it exposed to lawsuits by
victims of Manville products.

Attorney's fees. The Court agreed to hear Texas State Teachers
Association v. Garland Independent School District (No. 87-1759), a
case that questions whether a Texas school district must pay attorney's
fees to a teachers' union in a dispute over teachers' free-speech
rights.

The suit involves a district policy that barred union officials from
speaking to teachers during school hours and denied them access to
school mailboxes and bulletin boards. The district also prohibited
school employees from discussing union matters while on the job.

A federal district court upheld both of the policies. An appellate
court upheld the ban on union access to teachers and school
communication facilities, but struck down the policy that applied to
private conversations among teachers, saying it violated the First
Amendment.

After the Supreme Court refused to review that ruling in 1986, the
union went back to the district court seeking an award of legal fees
under the Civil Rights Attorney's Fees Awards Act.

The district court denied the request, noting that the tsta had not
prevailed on the question of union access to teachers and school
communication facilities, which it said was "the central issue" of the
suit. A divided panel of the appeals court upheld the denial of the
fees.

The case involves a decision by Conrail officials to add a drug test
to its medical-examination requirement for employees. The move was
spurred by a January 1987 drug-related Amtrak train wreck in
Maryland.

A federal appeals court ruled last April that under the Railway
Labor Act, the change should have been subject to collective
bargaining.

The Court had previously agreed to hear a pair of cases this term
that question whether drug-testing requirements for federal workers
violate the Fourth Amendment's ban on unreasonable searches and
seizures. It also has been asked to rule on the constitutionality of
the Dis8trict of Columbia's drug-testing policy for
school-transportation workers.

Church-state relations. The Justices agreed to resolve two disputes
that could provide the backdrop for a reexamination of previous rulings
on the relationship between church and state.

In Allegheny County v. aclu (Nos. 87-2050 and 88-96) and Chabad v.
aclu (No. 88-90), the Court will review an appellate ruling last March
that the First Amendment bars the placement of a Nativity scene in the
county courthouse and the placement of a Hanukkah Menorah alongside a
Christmas tree on the steps of the Pittsburgh city hall.

In a 1984 case, Lynch v. Donnelly, the Court ruled that the
Constitution did not bar Pawtucket, R.I., officials from displaying a
creche along with non-religious symbols such as Santa Claus, a tree,
and candy canes. Thus far, the Court has not applied its interpretation
of the First Amendment in Lynch to church-state cases involving public
schools.

In Frazee v. Illinois Department of Employment Security (No.
81-1945), the Court will decide whether a person can be denied
unemployment benefits if he declines to work on Sunday because of his
religious convictions. Illinois courts said the man who filed the suit
was not entitled to such benefits because he does not belong to a
religious group that requires him to refrain from work on the
Sabbath.

School desegregation. The Court declined to hear two cases in which
states argued that orders by federal judges requiring them to finance
school districts' desegregation programs abridged their 11th Amendment
immunity from being sued in federal courts.

In Arkansas State Board of Education v. Little Rock School District
(No.87-2085), state officials protested orders by lower federal courts
forcing them to pay the cost of remedial-education programs in seven
schools that will be left predominantly black under the Little Rock
district's desegregation plan.

And in Missouri v. Rockwood School District (No. 87-2040), officials
objected to orders requiring them to reimburse suburban St. Louis
districts for costs incurred under a voluntary cross-district
desegregation program with the city's schools.

Arkansas and Missouri officials both argued that the orders in their
cases conflicted with a ruling late last year by a federal appellate
court in a desegregation case involving the Nashville, Tenn., public
schools.

In that case, the U.S. Court of Appeals for the Sixth Circuit ruled
that the 11th Amendment restricts the power of federal courts to order
states to help pay districts' desegregation costs. (See Education Week,
Feb. 3, 1988.)

Nashville officials appealed that decision to the High Court earlier
this year, but this summer the Justices decided not to carry the case
over to its current term, thus letting the ruling stand.

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